Jackson: lawyers have ‘grown up’ since my first review

Lawyers have ‘grown up’ to accept that there needs to be reform in civil litigation costs, the architect of the proposed fixed fees regime said today.

Lord Justice Jackson told the Association of Costs Lawyers conference this morning that since he was first appointed to assess costs in 2008 he had noticed a dramatic ‘sea change’ in lawyers’ attitudes to his proposals. Since his appointment, and his subsequent review into civil litigation costs in 2013, a ‘new generation of lawyers with a better understanding of costs law’ has emerged.

‘When I first proposed that costs should be budgeted there were gasps of horror,’ he said, adding that lawyers fought ‘tooth and nail to defend an indefensible system’.

‘By the time of my second review there was not the same degree of hostility,’ he noted. ‘I put this change in attitude down to two factors. Firstly, many young lawyers have grown up and have a greater acceptance of costs budgeting. Second, I sense a realisation that untrammelled litigation costs are unacceptable to society.’

‘The only way to manage costs is to make a choice,' he said. 'Either cases are assessed on an ad hoc basis or there is a one size fits all approach.'

In his review into fixed recoverable costs, published in July, Jackson scaled back his previous suggestion that fixed costs could be applied to all claims up to a value of £250,000.

His report proposes:

A fixed grid of fixed recoverable costs for all fast-track cases.

A new ‘intermediate track’ for certain claims up to £100,000 and which can be tried in three days or less with not more than two experts on each side.

Piloting a ‘capped costs’ regime for business and property cases up to £250,000.

New measures to limit recoverable costs in judicial review cases.

Jackson was unable to tell delegates what the government's response would be. He hoped the Ministry of Justice would announce its plans shortly.

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Thanks Mr Jackson, but your (somewhat condescending) praise is ill deserved in my case. I take every opportunity to 'trash talk' you whenever the subject of personal injuries, insurance, or 'erosion of access to justice' comes up in conversation.

Fixed costs are right in certain scenarios and if they are reviewed and increased on a regular basis to allow for inflation etc. Predictable costs in RTA matters were set, if I remember correctly in 2002 with no review or increase for a decade.

I am a fully qualified lawyer (solicitor of many years' standing) but not a litigator...nonetheless I am rather concerned at the complacency of LJ Jackson who is judging his success by looking at the surface of things and patting himself on the back too readily.

I am concerned about access to real justice and what these reforms will do in terms of reducing the level of talent in the profession. God forbid I should ever need to pursue any litigation but if I do, like health service, you want to know you are getting truly competent service from your legal representative.

Additionally, I would resent having the level of costs I can recover from the losing party reduced to the extent that I may as well not bother to take action in the first place.

Many will simply not bother to take action - how does this improve access to justice even if it does help the Government to keep the deficit a bit lower than it would be otherwise...

Fixed costs don't reduce the costs of litigation. All they do is reduce the amount of costs the winner recovers from the loser, leaving him further out of pocket. The winner still has to pay his/ her own lawyers and faces a bigger bill than previously to pay for costs budgeting, higher court fees etc. It is difficult to see how this promotes the interests of justice.

Let's not forget, when the new rules on costs budgets were introduced, the High Court refused to accept the changes.

I received Orders stating costs budgets were not wanted or needed.

Let's be honest, LJ Jackson's heart was in the right place but he made a mess of it initially. He deserves credit for listening to the profession and adjusting. It's not easy to admit when you're wrong, especially in such a high profile manner.

But this latest statement suggests his listening phase is well and truly over.

And by that I mean that the continental judges are at least three times the number for servicing an inquisitorial system.

And, because of the way the British Legal Profession behave, (Bar in the main), in particular with the demand for the extortionate 'fees' they want for basic pleading (sums similar to really educated and skilled people like Surgeons), and the way they dance around in Court and play public school charades, carried on into a fairly mediocre lower Deputy/District Judge cosy sinecure, when the said same can no longer milk clients to the same levels they did in private practice, it isn't going to be long (just look at the numbers of LIP's and how fed up even very educated people are by the antics.

"...Wake up call for judges when they're faced with disorganised and aggressive LiPs, it's about the only time they get a taste of the real world. Now toddle off back to the cosy, quiet tower to relax, resplendent with the many millions of pounds of fees that you took when you were at the bar, from solicitors to whom you should be extremely grateful, not critical or patronising..."

Very good point. Wait until they get real work to do with the Inquisitorial System that is around the corner.

Thankfully he's gone as both at the DWP and MoJ he didn't even understand what natural justice or permission to appeal were. He even said (as Sec of State), "Most appeals have no merit but we can't stop people appealing." Of course stats showed most succeeded in their First Tier Tribunal Appeals against his dept. So he then introduced ET Fees without a vote in the House! The man is a walking travesty of justice. I've been more impressed since as Ministers have reversed all of his acts including book banning, but nationalising fees remains a bizarre policy which is a sorry hangover from his SDP days.

I respect Rupert Jackson. His judicial experience speaks for itself. He is the original co-author of Jackson and Powell on professional liability which is the pre-eminent text book on the subject. He is passionate about the future of justice. And in some respects he has been proven right. Who now will miss a deadline? But in other respects I think he is gravely mistaken. His ideas were usurped by the MoJ and the formidable insurance lobby which have one aim, no court cases at all. What we could have done with was an appreciation by Sir Rupert of that reality and a desire to see all sides of the matter properly represented. Instead he ploughs on. Overall the Jackson reforms have not achieved what he set out for them and costs have spiralled due the bureaucracy which he introduced. Despite what he says, he has not listened to practitioners and he needs to do so.

"I sense a realisation that untrammelled litigation costs are unacceptable to society.’"

But all these reforms have done is massively increase costs (whether "trammeled" or not). Costs budgeting does nothing to control costs as the budget allows a "reasonable" expenditure and can be revisited if excess costs are incurred for one reason or another, yet itself costs a small fortune, adding significantly to the overall costs of the action for winners and losers.

How long would some judges last in private practice, with all the admin, difficult clients, costs pressures, competing priorities etc etc? They see the polished, well-presented less-than 1% of disputes that solicitors didn't manage to settle. What judges don't see, or appreciate, is the hard graft that goes into that 99%, or often even the 1% that they hear, and sometimes criticise unrestrainedly even though the court service is often dismal, slow, disorganised and obscenely priced. Piffle, apparent from the 'grown up' comment directed at solicitors. And litigation costs have gone through the roof since the CPR 'evolved' from a useful and progressive booklet into the unwieldy monstrosity that it now is, complete with time-wasting costs budgeting for, as someone else here has described, work that often won't be done. Wake up call for judges when they're faced with disorganised and aggressive LiPs, it's about the only time they get a taste of the real world. Now toddle off back to the cosy, quiet tower to relax, resplendent with the many millions of pounds of fees that you took when you were at the bar, from solicitors to whom you should be extremely grateful, not critical or patronising.

Lawyers have "grown up"- more like have decided not to bother reasoning with this know it judge AND have are sadly leaving the profession as more and more firms downscale leaving those with genuine claims eventually seek help from Lord Harley's of this world.

Lawyers have "grown up" - what a pompous, patronising statement. These so-called "reforms" have just added further layers of work and cost. Fixed fees can only work if all parties act correctly (not holding my breath). However, we can argue all we like against reform - we will not be listened to nor will genuine concerns be taken into account.As an aside, when will barristers' and/or experts' fees be "reformed" and the subject of fixed fees - just asking?

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